Doyle v. Barnett
| Decision Date | 28 November 1995 |
| Docket Number | No. 72A01-9504-CV-119,72A01-9504-CV-119 |
| Citation | 658 N.E.2d 107 |
| Parties | Tony A. DOYLE, Appellant-Defendant, v. Lana G. BARNETT, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant-defendant Tony A. Doyle appeals the trial court's denial of his Ind.Trial Rule 60(B) motion which sought to set aside a default judgment entered against him. Specifically, Doyle argues that: 1) he did not receive proper service of appellee-plaintiff Lana G. Barnett's summons and complaint as required by Ind.Trial Rule 60(B)(6) and 2) the trial court abused its discretion in denying his motion to set aside the default judgment where he had a meritorious defense to the complaint.
The facts most favorable to the judgment reveal that on March 20, 1993, Doyle and Barnett were involved in a one-car accident in which Doyle's car left the road and overturned. As a result of the accident, Barnett suffered injuries. Barnett filed a complaint against Doyle on February 15, 1994. On February 18, 1994, the Sheriff delivered the summons and complaint to 2324 Lombardy Drive, Clarksville, Indiana. The return of service indicates that the summons and complaint were left with Doyle's father, who stated that Doyle was out of town but that he would attempt to contact him. When Doyle did not answer the complaint within twenty days, Barnett filed a motion for default judgment which the court granted after a hearing on April 22, 1994. The trial court awarded Barnett $100,000 in damages.
On May 24, 1994, Doyle filed a motion to set aside the default judgment. The trial court held a hearing, in which Doyle argued that he did not receive proper service and that he had a meritorious defense to the complaint. On August 3, 1994, the trial court denied Doyle's motion to set aside the default judgment. Thereafter, Doyle filed a motion to correct errors, which the trial court denied following a hearing on November 29, 1994.
Doyle first contends he was entitled to have the default judgment set aside pursuant to T.R. 60(B)(6) because he did not receive proper service of Barnett's complaint. Specifically, Doyle argues: 1) he was not served with a summons and complaint at his dwelling house or usual place of abode as required by Ind.Trial Rule 4.1(A) and 2) the service was not sent by first class mail to his last known address as required by Ind.Trial Rule 4.1(B). As a result, Doyle argues that the trial court lacked personal jurisdiction over him and therefore, the default judgment is void.
T.R. 4.1(A) sets forth the methods by which an individual can be served. One of those methods is by "leaving a copy of the summons and complaint at his dwelling house or usual place of abode." T.R. 4.1(A)(3). What is or is not a party's dwelling house or usual place of abode within the context of T.R. 4.1 is a question that turns on the particular facts of each case. Grecco v. Campbell (1979), 179 Ind.App. 530, 533, 386 N.E.2d 960, 962. Doyle argues that he was not properly served because he did not live at his father's residence, 2324 Lombardy Drive, Clarksville, on the date Barnett's summons and complaint were served to that location; thus, it was not his dwelling house or usual place of abode. The trial court, however, in its order denying Doyle's motion to set aside default judgment, found that Doyle's father's residence was Doyle's dwelling house or usual place of abode. In its ruling, the trial court relied primarily on IND.CODE § 9-24-13-4 1 and the Bureau of Motor Vehicle (BMV) records, which listed Doyle's address as that of his father's. We agree with Doyle that the trial court was incorrect in relying solely upon the BMV records to determine Doyle's dwelling house or usual place of abode. 2 Nonetheless, we find that Doyle received proper service of Barnett's complaint.
The record of the hearing on Doyle's motion to set aside the default judgment reveals that Doyle received all of his mail at his father's address and listed his father's address on the accident report. Record at 109, 122. Doyle's insurance company also maintained Doyle's address as that of his father, as evidenced by their records. R. at 105-06. Additionally, both at the time service was attempted and at the time Doyle sought to set aside the default judgment, the address listed on his driver's license was that of his father. R. at 109. Based on the totality of this evidence, we find that it was within the trial court's discretion to determine that Doyle's father's address was Doyle's usual place of abode, and because Barnett's complaint was delivered to that address, that Doyle received proper service of the complaint.
Nevertheless, Doyle argues he did not receive proper service because the Sheriff did not comply with T.R. 4.1(B), which provides that if service is attempted by leaving a copy of the summons and complaint at a defendant's dwelling house or usual place of abode, the person making service must send, by first class mail, a copy of the summons without the complaint to the last known address of the person being served. In the instant case, the Sheriff delivered a summons and Barnett's complaint to Doyle at his last known address by leaving the complaint with his father, who stated that Doyle was out of state but that he would attempt to contact him. R. at 9. Service was not attempted by sending the summons by first class mail as required by T.R. 4.1(B). Doyle, however, failed to raise this argument in the trial court and has, thus, waived any error for purposes of appeal.
Furthermore, during the hearing on Doyle's motion to correct error, Doyle's counsel conceded that had Doyle been living at his father's address, service was properly made. R. at 127. As we determined above, the trial court correctly found Doyle's father's address to be his dwelling house and usual place of abode. Therefore, by Doyle's own admission, he received proper service of Barnett's complaint.
Having determined that Doyle received proper service of Barnett's complaint, we now must determine whether the trial court abused its discretion in denying Doyle's motion to set aside the default judgment. Doyle argues that he was entitled to have the default judgment set aside pursuant to Ind.Trial Rule 60(B)(1), which provides that the court may relieve a party from a default judgment for mistake, surprise, or excusable neglect.
The trial court has considerable discretion in entering a judgment of default. Thus, the trial court's decision denying relief from the default judgment will be reversed only upon a showing of a clear abuse of that discretion. Taco Bell Corp. v. United Farm Bureau Mut. Ins. Co. (1991), Ind.App., 567...
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